Top Gear up before Top Judges

6 March 2013 by Rosalind English

Tesla Motors Ltd and another v British Broadcasting Corporation  [2013] EWCA Civ 152  – read judgment

The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.

The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review.  The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience.  

That edition of “Top Gear” was broadcast on 14^th December 2008. It has since been shown by the BBC and other television channels on several occasions and remains available for viewing on the ‘Top Gear’ web site.

Clarkson made favourable comments about the car’s speed, acceleration and the cost of recharging, but then said  “although Tesla said it would do 200 miles … on our track it would run out after just 55 miles and … it is not a quick job to charge it up again”.  There followed a shot of people pushing one of the Roadsters into the hangar and Mr. Clarkson plugging in the cable in order to re-charge it. Clarkson observes

What we have here, then, is an astonishing technical achievement. The first electric car that you might actually want to buy. It’s just a shame that in the real world it doesn’t seem to work

Over two years later, Tesla issued proceedings against the BBC claiming damages for libel and malicious falsehood based on publications of the film during the preceding twelve months. It alleged that the mileage statement was defamatory because it implied that Tesla had intentionally or recklessly grossly misled potential purchasers of the Roadster by claiming that it had a range of about 200 miles when in fact its true range was in the order of 55 miles. The manufacturer also claimed malicious falsehood in respect of the comments and footage that implied that the Roadster had run out of charge, arguing that these had been published by the BBC maliciously and were calculated to cause it pecuniary damage in respect of its business. (A claimant can recover general damages under section 3 of the Defamation Act 1952 if he can prove that the statement of which he complains is calculated – i.e. more likely than not – to cause him pecuniary damage.)

At first instance, Tugendhat J held that the words complained of wholly incapable of conveying the meaning that Tesla had intentionally or recklessly misled the public about the Roadster’s range under ordinary driving conditions, to which alone its publicity related. He reached that conclusion because he considered that the contrast between the conditions under which the cars had been tested by ‘Top Gear’ and those which one would expect to encounter on public roads were so great that no reasonable person could understand that performance on the track was capable of direct comparison with performance on public roads. He therefore struck out the claim for libel. The malicious falsehood claim was found to be insufficiently particularised, and was ordered to be struck out unless Tesla obtained permission to amend its particulars of claim. Permission was refused, the judge finding that the proposed amendments had no real prospect of success.

This appeal against the judge’s ruling was dismissed.

Reasoning behind the judgment

Tugendhat J had been correct to strike out the libel claim because the mileage statement was incapable of bearing the meaning contended for by the manufacturer. One important matter which was vividly conveyed by the film was the nature of the testing that was carried out by the ‘Top Gear’ team, which involved violent acceleration, continuous high-speed driving at or near the limits of the car’s capability and heavy cornering. Testing of this kind is typical of ‘Top Gear’, as most viewers of the programme would know, but even a person viewing the programme for the first time would immediately realise that the style of driving bears no relationship to that which could be engaged in on a public road, even if the car were to be driven quickly by normal standards. It would be obvious to a reasonable viewer from the words “on our track” that the range derived from track testing was not the car’s “true range” and he would therefore have no reason to infer that, by claiming a range of 200 miles, Tesla had set out to mislead.

The question then arose whether the judge was wrong to refuse Tesla permission to amend the particulars of claim to allege that there were reasonable grounds to suspect that Tesla had “intentionally and significantly” misrepresented the range of the Roadster.   Although the court should generally lean towards allowing amendments so as to ensure that the real dispute was properly determined, there were limits to that principle: substantial amendments could disrupt proceedings, add to the costs, and prolong trial. In any event the case pleaded in the proposed amendment had been bound to fail.

The difficulty for Tesla was that over a period of some 15 months between the first broadcast of the programme in December 2008 and the beginning of the one year limitation period at the end of March 2010 there had been numerous further broadcasts of the programme,  so there had been very wide publication of unfavourable statements, which were no longer actionable (because they had become statute-barred). The need to distinguish their effect from that of the actionable falsehoods raised an acute causation issue, which the judge had not felt was sufficiently addressed in the proposed amended particulars. Furthermore, Moore-Bick LJ, giving the lead judgment in the Court of Appeal, considered that  the prospects of satisfying the court that the loss likely to be caused by the actionable falsehoods was significant is so small that in reality no substantial tort had been committed. In the absence of a solid pleaded case for special damages, there were grave difficulties in identifying any pecuniary loss that the actionable false statements were calculated to cause. The principles enunciated in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 were relevant to these proceedings. They may not have been an actual abuse of process, but there was no sufficient prospect of Tesla recovering a substantial sum of damages such as to justify continuing the case to trial. The judge below had been correct to refuse permission for the amendment.

Comment

We have seen the Jameel principle applied in a similar fashion to  recent libel claim against Google – see my post on that ruling. This principle plays a similar role in the common law of libel to that of the proportionality principle in human rights and other public law cases. It may be that the claim itself is based on very good grounds. But such an action, though technically well-founded, may be unlikely to serve a useful purpose. Jameel allows the courts determine whether it is an abuse of the process to commit substantial resources to an action where so little was at stake, it reflects, in other words

The need to hold a balance between the public right to freedom of speech and the private right to protection of reputation and between the individual’s right to pursue bona fide claims and the public right to require that limited resources be allocated fairly among litigants as a whole

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